CHAPTER X.
Law Reform—The Penal Code—Restriction of the Penalty of Death in 1823-4—Appointment of Commissioners to reform the Civil Law in 1828-9—Sir James Mackintosh—Brougham—Robert Hall.
On the death of Romilly, the leadership in the reformation of the criminal code devolved on Sir James Mackintosh. At the election just before his decease, the liberal party largely increased its members of Parliament. Early in the session of 1819, Sir James carried a motion against Ministers for a committee to revise the penal code. He was appointed its chairman; and in 1820-1, in pursuance of its doings, introduced six bills for the abrogation of capital punishment in certain cases of forgery, larceny, and robbery, and amending the law in other important particulars. The bills were defeated. A partial effort at reform was made the next session, and one or two feeble triumphs achieved. But the day was dawning. In 1823, Sir James proposed nine resolutions, providing for radical reforms in the penal code. Mr. Peel, the Home Secretary, caused these propositions to be rejected, only that Ministers might introduce bills of their own, which largely restricted the death-penalty, and prepared the way for other repealing acts, till capital punishment was abrogated in some fifty cases. Thus the dark and sanguinary system which had so long reared its front over the jurisprudence of England, received a fell blow.
In 1828, Mr. Brougham made his celebrated speech in favor of remodeling the whole civil branch of the common law. Near the close he said: "It was the boast of Augustus—it formed part of the glare in which the perfidies of his earlier years were lost—that he found Rome of brick, and left it of marble—a praise not unworthy a great prince. But how much nobler will be the sovereign's boast, when he shall have it to say, that he found law dear, and left it cheap—found it a sealed book, left it a living letter—found it the patrimony of the rich, left it the inheritance of the poor—found it the two-edged sword of craft and oppression, left it the staff of honesty and the shield of innocence!" This speech, one of the greatest Mr. Brougham ever delivered, was followed by an address to the throne for the appointment of commissioners to inquire into the origin, progress, and termination of actions in the courts, and into the state of the law regarding real property. Two commissions were immediately instituted; one of general common law inquiry; the other, of inquiry into the law of real estate. Afterwards, the subjects of codification, consolidation of the statutes, and reform of the criminal law, were referred to other commissions. The commission to inquire into abuses in courts of equity had previously been appointed. Some twenty or thirty of the ablest lawyers in the kingdom were placed on these commissions, several of whom have since been elevated to the bench. Their elaborate reports, presented during the past twenty years, have displayed vast research and learning, and the numerous reforms recommended by them, exhibiting a cautious but steady advance in the path of improvement, have generally been adopted by the legislature. Though the prevailing law of England still continues a chaos of absurdities and excellences, the reforms introduced by these commissioners will be appreciated by all who have occasion to explore the intricate windings and gloomy chambers of the huge structure. The reports alluded to have been the textbooks of revisers and codifiers in other countries where the common law prevails, and were frequently cited, and their recommendations often adopted, by the able revisers of the New York Statutes—which last have served as the model for revisers in other States of the American Union.
I am now to speak more particularly of Sir James Mackintosh, one of the brightest ornaments of the liberal party of Great Britain. This eminent Scotsman was born of humble parentage, in 1765. At the University of Aberdeen he met Robert Hall, the celebrated Baptist divine, to whom he became warmly attached, "because," as Sir James says, "I could not help it." He adds, that he "was fascinated by his brilliancy and acumen, in love with his cordiality and ardor, and awe-struck by the transparency of his conduct and the purity of his principles." Their class-mates called them Plato and Herodotus. They traveled the whole field of ancient and modern metaphysics and philosophy hand in hand, debating every point as they went, till in Plato and Edwards, in Aristotle and Berkley, in Cicero and Butler, in Socrates and Bacon, there was scarcely a principle they had not examined, and about which they had not enjoyed a keen encounter of their wits. The heat engendered by these friendly controversies fused more completely into one their congenial natures. Such an attachment, formed in the springtime of youth, was sure to endure; and though, in subsequent life, they moved in widely different spheres, their intimacy continued throughout their long career.
Being destined for the medical profession, Mackintosh took his degree at Edinburgh, and went up to London to practice. George III, then exhibiting symptoms of insanity, the subject of his illness and of making his son Regent was agitating Parliament when Mackintosh arrived in the metropolis. Doctor Mackintosh, instead of prescribing for the diseases of the king, wrote a pamphlet in favor of the claims of the prince; leaving the constitution of the monarch to take care of itself, while he attended to the constitution of the monarchy. The king suddenly recovered, when, it being no longer necessary to administer medicine either to the Crown or the Constitution, the Prince of Wales returned to his mistresses, and Mackintosh went to Leyden to complete his studies, where he lounged away a few months, reading Homer and Herodotus, to the great neglect of Galen and Hippocrates. Returning to England, he plunged into matrimony before he had sufficient practice to buy an anatomical skeleton for his office. Happily, his wife sympathized in his literary tastes, and, at once detecting the defects of his character, "urged him to overcome his almost constitutional indolence."
The French revolution, which ruined so many fortunes, made his. In 1791, he published a volume entitled "Vindiciæ Gallicæ, or, a Defense of the French Revolution and its English Admirers against the Accusations of the Rt. Hon. Edmund Burke." The very title-page immediately carried off the first edition, and the acute reasoning, brilliant declamation, and classic style of this vigorous but immature production gave currency to three editions at the end of four months. There was a great deal of heady strength in both these essays. Mackintosh's was like a river sweeping to the ocean, covered with sparkling foam. Burke's like the long, heavy swells of that ocean, whose crests are pelted by the winds and dance in the sun. Both authors set up for prophets; and, like other inspired and less famous men, they mistook the illusions of their fancy and the suggestions of their imagination for the visions of the seer and the teachings of the divine inflatus. Burke was nearer right as to the result of the then pending revolution; but Europe would now account Mackintosh the best prophet. This volume gave Mackintosh an introduction to Fox and the other Whig chiefs, and he became their warm friend. Soon after, falling into the captivating society of Burke, his teachings combined with the sanguinary turn of French affairs to considerably modify the views put forth in his Vindiciæ.
Throwing physic to the dogs, Mackintosh entered Lincoln's Inn, and was called to the bar in 1795. But, though the study of the law was more congenial to his tastes than medicine, his practice in his new profession was scarcely more extensive than in the old. In truth, he was too indolent, too desultory in his efforts, too fond of literature and abstract speculation, to excel in any pursuit requiring close application and orderly habits, rendering his whole life a series of brilliant but mere inchoate performances. In 1798, he proposed to deliver a series of lectures in Lincoln's Inn, on the Law of Nature and of Nations. The doors were closed against him, because of his supposed Jacobinical principles—the Benchers of that conservative corporation not wishing to have the doctrines of the Vindiciæ Gallicæ promulgated in their halls. Mackintosh published his introductory lecture to refute the charge of Jacobinism, and it was so tinctured with Burkeism, and so philosophical and eloquent, that it captivated Pitt, who persuaded the Chancellor to recommend the opening of the Inn. It was done, and Mackintosh entranced a learned audience throughout his gorgeous course.
His next attractive performance was the defense of Peltier, a French refugee, the editor of the Ambigu, for an alleged libel on Napoleon, the First Consul. His oration (for it partook little of the character of a speech at the bar) in vindication of the liberty of the press was pronounced by Lord Ellenborough, the chief justice, to be the most eloquent address ever delivered in Westminster Hall. Madame de Stael sent it through Europe in a French translation, and it secured for its author a continental reputation. And in our day and country it is read by thousands who have hardly heard of any other production of his tongue or pen. His lectures and his oration not only gave him celebrity, but, what he needed quite as much, a little money; and they brought him an offer of a judicial station at Bombay. Still pressed by pecuniary embarrassments, after much reluctance, he consented to be banished, with his wife and children, from his native land, to an inhospitable clime amongst a strange people. For nearly eight years he discharged his judicial duties with fidelity, but through every month of those years he sighed for his country and its healthy breezes, his associates and their brilliant society. He relieved the tedium of his expatriation by making some researches into Oriental institutions, by founding a literary club at Bombay, and by indulging, in his desultory way, in classical and philosophical pursuits. His study and administration of the criminal laws of India turned his attention to the subject which occupied so large a share of his subsequent Parliamentary life—the penal code of England.
The generous and philanthropic mind which had prompted the extension of the right-hand of fellowship to the emancipated masses of France, in 1791, and which, forty years later, was stretched forth to break the chains from the limbs of the West India bondmen, was not slow to see that the criminal code of his own country was the legitimate offspring of a black and bloody age. Returning to England in 1811, he entered Parliament in 1813, where he remained until his death, in 1832. He promptly took his seat by the side of his friends, Brougham and Romilly, and threw his great soul into the contest of the People with the Crown. The important questions growing out of the European and American wars, in regard to the rights of neutrals, were then pending, and he joined Brougham in advocating liberal measures. And, to the end of his legislative career, on all questions of foreign policy and continental combinations, on the alien bill and the liberty of the press, on Catholic emancipation and the abolition of slavery, on the recognition of South American independence and the settlement of Greece, on the education of the poor and the freedom of trade, on the relief of the Dissenters and Parliamentary reform, he was ever found on the side of justice and humanity. For a short period he was the leader of the liberal party in the Commons, but he soon relinquished the post to the more daring and robust Brougham. Indeed, Sir James had not the capacity for leading a popular body like the House of Commons. He was too indolent in mastering dry details, too little of a business man, and his style of oratory was too philosophical, classical, and refined, to produce the best effect on such an assembly. He spoke over the heads of country squires and men of the 'change, who could not translate his Greek and Latin quotations, nor catch the point of his learned allusions, nor see precisely what these had to do with the traffic in corn or negroes, or the overthrow of the Holy Alliance abroad, or the uprooting of rotten boroughs at home. When Hume figured before the House, with his bales of statistics, these plain men could arrive at the sum total of what he was at. When Canning's arrows whirled about the heads of the Opposition, they could see them quivering in the flesh of his antagonists. When Romilly's eloquence wafted gently over them, they were refreshed and delighted. And even when Brougham shook the walls like an earthquake, they understood why they held so fast to their seats. But Mackintosh's Plato and Priam, his Homer and his Helicon, were "Greek" to them. His speeches were better adapted to be read in the library of the scholar than to be heard in the Commons House of Parliament. It was these defects in his oratory, and his utter want of all taste for business, and his indolent and immethodical habits, which kept him behind men of inferior talents and acquirements while his party was in opposition, and gave him no prominent place in its counsels when it assumed the reins of Government. Sydney Smith, in a characteristic letter to Sir James's son, writes thus: "Curran, the Master of the Rolls, said to Grattan, 'You would be the greatest man of your age, Grattan, if you would buy a few yards of red tape, and tie up your bills and papers.' This was the fault or misfortune of your excellent father. He never knew the use of red tape, and was utterly unfit for the common business of life."
Mackintosh was a man of the purest benevolence and the liveliest philanthropy. He held all his vast literary and philosophical attainments cheap in comparison with his labors in the cause of humanity. The friendless criminal, shuddering in the dock under the frown of some heartless judge—the imbruted slave, writhing under the lash of a task-master in the islands of the West—the yeoman at his plow, deprived of the electoral rights which the very sods he tilled could enjoy—the educated Dissenter and Catholic, shut out from stations of honor and trust for refusing a test which stained their consciences, were all advanced to a higher civilization and a broader field of civil and religious freedom, by his aid. He was the zealous co-worker of Wilberforce and Clarkson, of Brougham and Buxton, of Sturge and Lushington, in the work of negro emancipation. His last, greatest, speech in Parliament was on the Reform Bill. Bulwer says of it: "I shall never forget the extensive range of ideas, the energetic grasp of thought, the sublime and soaring strain of legislative philosophy, with which he charmed and transported me." Before such services as he rendered to the cause of man, how all the acquisitions and displays of the scholar and the metaphysician grow pale!
I have spoken of his intimacy with Robert Hall. There was a striking similarity in the structure of their minds and in their literary tastes. The politician was a classical, philosophical lawyer and Parliamentarian. The divine was a classical, philosophical theologian and preacher. Each was fond of abstract speculation—each was a profound and original reasoner and thinker—each reveled in the literature of the ancients—each was a writer of whom any nation or age might be proud. Hall much excelled his friend in the high walks of oratory, and the power of riveting, of transfixing an auditory, and holding them spell-bound while he played with their passions and emotions with masterly skill. The first pulpit orator of his day, in the zenith of his fame he could attract a greater crowd of rare men than any other preacher in the metropolis or the country. The same cannot be affirmed of Mackintosh in the theater where he displayed his forensic powers. The speech which so transported Bulwer in the House of Commons, because of defects in the delivery transported half the members out of it. Each shone no less in the social circle than in the forum. While Mackintosh was the more ornate and classical talker, Hall surpassed him in keen sarcasm and solid argument. The conversational talents of Hall were more appreciable by ordinary capacities, his style being racy, off-hand, bold. Mackintosh was fitted to be the companion of polite scholars and learned critics, and his conversation was more showy, dazzling, and prepared. The wit of Hall, when in full play, approached to drollery, and his sarcasm cut to the bone. The wit of Mackintosh was Attic, and his sarcasm refined and delicate. Hall crushed a pedantic fool with a single blow of his truncheon. Mackintosh tossed him on the end of his lance. Hall made no effort to shine in society, and all his good things seemed to bubble up naturally from a full fountain, whilst his strength was reserved for public exhibitions, where he shone in splendor. Mackintosh elaborated his social effusions, (and it was his weakness,) and his best things gushed like jet d'eaus from prepared reservoirs; and if he failed to win applause at St. Stephen's, he was sure to be the center of attraction at Holland House. Hall put down upstartism like a judge at nisi prius rebuking a shallow barrister for contempt of court. Mackintosh pricked the gas-bag with the delicate instrument of his irony. Hall was loved by his friends. Mackintosh was admired by his associates. Each was a philanthropist and reformer, and each in his sphere was in advance of his times in catholicity of spirit, boldness of speculation, and freedom from the cant of party and sect.
The works of Mackintosh are numerous—though some of his best writings hardly deserve to be called works, in the incomplete state in which he left them. Besides those already mentioned, there may be noted many rich contributions to the Edinburgh Review and other periodicals—some Parliamentary and anniversary speeches—a beautiful life of Sir Thomas More—an acute and eloquent dissertation in the Encyclopedia Britannica on the General View of the Progress of Ethical Philosophy—and a Fragment of English History concerning the Revolution of 1688.
During his lifetime, Sir James was abused by the Tories; nor did the tirade cease at his death. Somewhat covetous of fame, and utterly reckless of gold, he left little to his children, except a brilliant reputation and principles that can never die.